83 FR 50976 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-Members; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change
SECURITIES AND EXCHANGE COMMISSION Federal Register Volume 83, Issue 196 (October 10, 2018)
Federal Register Volume 83, Issue 196 (October 10, 2018)
| Page Range | 50976-50980 | |
| FR Document | 2018-21921 |
[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)] [Notices] [Pages 50976-50980] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-21921] [[Page 50976]] ======================================================================= ----------------------------------------------------------------------- SECURITIES AND EXCHANGE COMMISSION [Release No. 34-84357; File No. SR-MIAX-2018-25] Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing of a Proposed Rule Change To Amend the Fee Schedule Regarding Connectivity Fees for Members and Non-Members; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change October 3, 2018. Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ notice is hereby given that on September 18, 2018, Miami International Securities Exchange LLC (``MIAX Options'' or ``Exchange'') filed with the Securities and Exchange Commission (``Commission'') a proposed rule change as described in Items I and II below, which Items have been prepared by the Exchange. The Commission is publishing this notice to solicit comments on the proposed rule change from interested persons and is, pursuant to Section 19(b)(3)(C) of the Act, hereby: (i) Temporarily suspending the proposed rule change; and (ii) instituting proceedings to determine whether to approve or disapprove the proposed rule change. --------------------------------------------------------------------------- \1\ 15 U.S.C. 78s(b)(1). \2\ 17 CFR 240.19b-4. --------------------------------------------------------------------------- I. Self-Regulatory Organization's Statement of the Terms of Substance of the Proposed Rule Change The Exchange is filing a proposal to amend the MIAX Options Fee Schedule (the ``Fee Schedule'') to modify certain of the Exchange's system connectivity fees. The text of the proposed rule change is available on the Exchange's website at http://www.miaxoptions.com/rule-filings, at MIAX's principal office, and at the Commission's Public Reference Room. II. Self-Regulatory Organization's Description of the Proposed Rule Change In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements. A. Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change 1. Purpose The Exchange proposes to amend the Fee Schedule regarding connectivity to the Exchange. Specifically, the Exchange proposes to amend Sections 5(a) and (b) of the Fee Schedule to increase the network connectivity fees for the 1 Gigabit (``Gb'') fiber connection, the 10Gb fiber connection, and the 10Gb ultra-low latency (``ULL'') fiber connection, which are charged to both Members \3\ and non-Members of the Exchange for connectivity to the Exchange's primary/secondary facility. The Exchange also proposes to increase the network connectivity fees for the 1Gb and 10Gb fiber connections for connectivity to the Exchange's disaster recovery facility. These proposed fee increases are collectively referred to herein as the ``Proposed Fee Increases.'' --------------------------------------------------------------------------- \3\ The term ``Member'' means an individual or organization approved to exercise the trading rights associated with a Trading Permit. Members are deemed ``members'' under the Exchange Act. See Exchange Rule 100. --------------------------------------------------------------------------- The Exchange initially filed the Proposed Fee Increases on July 31, 2018, designating the Proposed Fee Increases effective August 1, 2018.\4\ The proposed rule change was published for comment in the Federal Register on August 13, 2018.\5\ The Commission received one comment letter on the proposal.\6\ The Proposed Fee Increases remained in effect until they were temporarily suspended pursuant to a suspension order (the ``Suspension Order'') issued by the Commission.\7\ The Suspension Order also instituted proceedings to determine whether to approve or disapprove the proposed rule change.\8\ --------------------------------------------------------------------------- \4\ See Securities Exchange Act Release No. 83786 (August 7, 2018), 83 FR 40106 (August 13, 2018) (SR-MIAX-2018-19). \5\ Id. \6\ See Letter from Tyler Gellasch, Executive Director, The Healthy Markets Association, to Brent J. Fields, Secretary, Commission, dated September 4, 2018 (``Healthy Markets Letter''). \7\ See Securities Exchange Act Release No. 34-84175 (September 17, 2018). \8\ Id. --------------------------------------------------------------------------- The Healthy Markets Letter argued that the Exchange did not provide sufficient information in its filing to support a finding that the proposal is consistent with the Act. Specifically, the Healthy Markets Letter objected to the Exchange's reliance on the fees of other exchanges to demonstrate that its fee increases are consistent with the Act. In addition, the Healthy Markets Letter argued that the Exchange did not offer any details to support its basis for asserting that the proposed fee increases are consistent with the Act. The Exchange is now re-filing the Proposed Fee Increases, and is also providing additional detail regarding the basis for the Proposed Fee Increases. The proposed rule change is immediately effective upon filing with the Commission pursuant to Section 19(b)(3)(A) of the Act. The Exchange currently offers various bandwidth alternatives for connectivity to the Exchange, consisting of a 1Gb fiber connection, a 10Gb fiber connection, and a 10Gb ULL fiber connection. The 10Gb ULL offering uses an ultra-low latency switch, which provides faster processing of messages sent to it in comparison to the switch used for the other types of connectivity. The Exchange currently assesses the following monthly network connectivity fees to both Members and non- Members for connectivity to the Exchange's primary/secondary facility: (a) $1,100 for the 1Gb connection; (b) $5,500 for the 10Gb connection; and (c) $8,500 for the 10Gb ULL connection. The Exchange also assesses to both Members and non-Members a monthly per connection network connectivity fee of $500 for each 1Gb connection to the disaster recovery facility and a monthly per connection network connectivity fee of $2,500 for each 10Gb connection to the disaster recovery facility. The Exchange's MIAX Express Network Interconnect (``MENI'') can be configured to provide Members and non-Members of the Exchange network connectivity to the trading platforms, market data systems, test systems, and disaster recovery facilities of both the Exchange and its affiliate, MIAX PEARL, LLC (``MIAX PEARL''), via a single, shared connection. Members and non-Members utilizing the MENI to connect to the trading platforms, market data systems, test systems and disaster recovery facilities of the Exchange and MIAX PEARL via a single, shared connection are assessed only one monthly network connectivity fee per connection, regardless of the trading platforms, market data systems, test systems, and disaster recovery facilities accessed via such connection. The Exchange proposes to increase the monthly network connectivity fees for such connections for both Members and non-Members. The network connectivity fees for connectivity to the Exchange's primary/secondary facility will be increased as follows: (a) From $1,100 to $1,400 for the 1Gb connection; (b) from $5,500 to $6,100 for the 10Gb [[Page 50977]] connection; and (c) from $8,500 to $9,300 for the 10Gb ULL connection. The network connectivity fees for connectivity to the Exchange's disaster recovery facility will be increased as follows: (a) From $500 to $550 for the 1Gb connection; and (b) from $2,500 to $2,750 for the 10Gb connection. The Exchange believes that it is reasonable and appropriate to increase its fees charged for use of its connectivity to partially offset increased costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the US options industry. The Exchange notes that other exchanges have similar connectivity alternatives for their participants, including similar low-latency connectivity. For example, Nasdaq PHLX LLC (``Phlx''), NYSE Arca, Inc. (``Arca''), NYSE American LLC (``NYSE American'') and Nasdaq ISE, LLC (``ISE'') all offer a 1Gb, 10Gb and 10Gb low latency ethernet connectivity alternatives to each of their participants.\9\ The Exchange further notes that Phlx, ISE, Arca and NYSE American each charge higher rates for such similar connectivity to primary and secondary facilities.\10\ Additionally, the Exchange's proposed connectivity fees to its disaster recovery facility are within the range of the fees charged by other exchanges for similar connectivity alternatives.\11\ The Exchange believes that it is reasonable and appropriate to increase its fees charged for use of its connectivity to partially offset increased costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the US options industry. --------------------------------------------------------------------------- \9\ See Phlx and ISE Rules, General Equity and Options Rules, General 8, Section 1(b). Phlx and ISE each charge a monthly fee of $2,500 for each 1Gb connection, $10,000 for each 10Gb connection and $15,000 for each 10Gb Ultra connection, which the equivalent of the Exchange's 10Gb ULL connection. See also NYSE American Fee Schedule, Section V.B, and Arca Fees and Charges, Co-Location Fees. NYSE American and Arca each charge a monthly fee of $5,000 for each 1Gb circuit, $14,000 for each 10Gb circuit and $22,000 for each 10Gb LX circuit, which the equivalent of the Exchange's 10Gb ULL connection. \10\ Id. \11\ See Nasdaq ISE Schedule of Fees, IX(D) (charging $3,000 for disaster recovery testing & relocation services); see also Cboe Exchange, Inc. (``Cboe'') Fees Schedule, p. 14, Cboe Command Connectivity Charges (charging a monthly fee of $2,000 for a 1Gb disaster recovery network access port and a monthly fee of $6,000 for a 10Gb disaster recovery network access port). --------------------------------------------------------------------------- In particular, the Exchange's increased costs associated with supporting its network are due to several factors, including increased costs associated with maintaining and expanding a team of highly- skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability, through the Exchange's R&D efforts. For example, the Exchange has had to hire additional network engineering staff in the last year, and plans to hire additional staff in the coming months. Further, the Exchange contracts with a third-party data center provider for its data center space. The Exchange does not operate its own data centers. Other exchange operators do operate their own data centers. Thus, they can better control data center costs. They also operate them as profit centers. Conversely, the Exchange is subject to fee increases from its data center provider, which the Exchange experienced in the last year. Further, the Exchange invests significant resources in network R&D to improve the overall performance and stability of its network. For example, the Exchange has a number of network monitoring tools (some of which were developed in-house, and some of which are licensed from third-parties), that continually monitor, detect, and report network performance, many of which serve as significant value- adds to the Exchange's Members and enable the Exchange to provide a high level of customer service. These tools detect and report performance issues, and thus enable the Exchange to proactively notify a Member (and the SIPs) when the Exchange detects a problem with a Member's connectivity. The costs associated with the maintenance and improvement of existing tools and the development of new tools resulted in increased cost to the Exchange. Certain recently developed network aggregation and monitoring tools provide the Exchange with the ability to measure network traffic with a much more granular level of variability. This is important as Exchange Members demand a higher level of network determinism and the ability to measure variability in terms of single digit nanoseconds. Also, the Exchange routinely conducts R&D projects to improve the performance of the network's hardware infrastructure. As an example, in the last year, the Exchange's R&D efforts resulted in a performance improvement in its network switches, requiring the purchase of new switching equipment, and thus resulting in increased costs. In sum, the costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the US options industry is a significant expense for the Exchange that continues to increase, and thus the Exchange believes that it is reasonable to offset some of those increased costs by increasing its network connectivity fees, as proposed herein. Overall, the Proposed Fee Increases are projected to offset only a portion of the Exchange's increased network connectivity costs. 2. Statutory Basis The Exchange believes that its proposal to amend its Fee Schedule is consistent with Section 6(b) of the Act \12\ in general, and furthers the objectives of Section 6(b)(4) of the Act \13\ in particular, in that it provides for the equitable allocation of reasonable dues, fees and other charges among Exchange Members and issuers and other persons using any facility or system which the Exchange operates or controls. The Exchange also believes the proposal furthers the objectives of Section 6(b)(5) of the Act \14\ in that it is designed to promote just and equitable principles of trade, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest and is not designed to permit unfair discrimination between customer, issuers, brokers and dealers. --------------------------------------------------------------------------- \12\ 15 U.S.C. 78f(b). \13\ 15 U.S.C. 78f(b)(4). \14\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- The Exchange believes that its proposal is consistent with Section 6(b)(4) of the Act because the fees assessed for connectivity allow the Exchange to cover the costs associated with providing and maintaining the necessary hardware and other infrastructure to support this technology. The Exchange believes that the proposal to increase the fees for connectivity alternatives is fair, equitable and not unreasonably discriminatory because the increased fees are assessed equally among all users of the applicable connections. As discussed above, Phlx and ISE each offer different connections with respect to latency, and Arca and NYSE American both offer similar connectivity alternatives.\15\ Despite this, Phlx, ISE, Arca and NYSE American charge a higher fee than the Exchange currently charges for similar connections to primary and secondary facilities.\16\ Furthermore, the connectivity fees for the disaster recovery facilities of other exchanges are within the range of the proposed fees of the Exchange.\17\ For these reasons, the [[Page 50978]] Exchange believes the proposed increase in the fees for the fiber connectivity to the Exchange is reasonable and not unfairly discriminatory. --------------------------------------------------------------------------- \15\ See supra note 9. \16\ Id. \17\ See supra note 11. --------------------------------------------------------------------------- The Exchange believes that the proposal to increase the fees for connectivity alternatives is fair, equitable and not unreasonably discriminatory because the increased fees will only partially offset the Exchange's increased costs associated with maintaining its network infrastructure. In particular, the Exchange's increased costs associated with supporting its network are due to several factors, including increased costs associated with maintaining and expanding a team of highly-skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability, through the Exchange's R&D efforts. For example, the Exchange has had to hire additional network engineering staff in the last year, and plans to hire additional staff in the coming months. Further, the Exchange contracts with a third-party data center provider for its data center space. The Exchange does not operate its own data centers. Other exchange operators do operate their own data centers. Thus, they can better control data center costs. They also operate their data centers as profit centers. Conversely, the Exchange is subject to fee increases from its data center provider, which the Exchange experienced in the last year. Further, the Exchange invests significant resources in network R&D to improve the overall performance and stability of its network. For example, the Exchange has a number of network monitoring tools (some of which were developed in- house, and some of which are licensed from third-parties), that continually monitor, detect, and report network performance, many of which serve as significant value-adds to the Exchange's Members and enable the Exchange to provide a high level of customer service. These tools detect and report performance issues, and thus enable the Exchange to proactively notify a Member (and the SIPs) when the Exchange detects a problem with a Member's connectivity. The costs associated with the maintenance and improvement of existing tools and the development of new tools resulted in increased cost to the Exchange. Certain recently developed network aggregation and monitoring tools provide the Exchange with the ability to measure network traffic with a much more granular level of variability. This is important as Exchange Members demand a higher level of network determinism and the ability to measure variability in terms of single digit nanoseconds. Also, the Exchange routinely conducts R&D projects to improve the performance of the network's hardware infrastructure. As an example, in the last year, the Exchange's R&D efforts resulted in a performance improvement in its network switches, requiring the purchase of new switching equipment, and thus resulting in increased costs. In sum, the costs associated with maintaining and enhancing a state-of-the-art exchange network infrastructure in the US options industry is a significant expense for the Exchange that continues to increase, and thus the Exchange believes that it is fair, equitable, and not unreasonably discriminatory to offset some of those increased costs by increasing its network connectivity fees, as proposed herein. Overall, the Proposed Fee Increases are projected to offset only a portion of the Exchange's increased network connectivity costs. The Exchange also believes that its proposal is consistent with Section 6(b)(5) of the Act \18\ because all MIAX Options participants have the opportunity to subscribe to the Exchange's connections. There is also no differentiation among MIAX Options participants with regard to the fees charged for these services. --------------------------------------------------------------------------- \18\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- B. Self-Regulatory Organization's Statement on Burden on Competition The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. On the contrary, the Exchange believes that the proposed changes should increase both intermarket and intramarket competition. Specifically, the Exchange believes that the changes will promote competition by increasing the connectivity fees to become more within the range of comparable fees assessed by other competing exchanges.\19\ --------------------------------------------------------------------------- \19\ See supra note 9. --------------------------------------------------------------------------- The Exchange notes that it operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive. In such an environment, the Exchange must continually adjust its fees to remain competitive with other exchanges. The Exchange believes that the proposed changes reflect this competitive environment. To the extent that this purpose is achieved, all the Exchange's market participants should benefit from the improved market liquidity. C. Self-Regulatory Organization's Statement on Comments on the Proposed Rule Change Received From Members, Participants, or Others Written comments were neither solicited nor received. III. Suspension of the Proposed Rule Change Pursuant to Section 19(b)(3)(C) of the Act,\20\ at any time within 60 days of the date of filing of a proposed rule change pursuant to Section 19(b)(1) of the Act,\21\ the Commission summarily may temporarily suspend the change in the rules of a self-regulatory organization (``SRO'') if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. As discussed below, the Commission believes a temporary suspension of the proposed rule change is necessary and appropriate to allow for additional analysis of the proposed rule change's consistency with the Act and the rules thereunder. --------------------------------------------------------------------------- \20\ 15 U.S.C. 78s(b)(3)(C). \21\ 15 U.S.C. 78s(b)(1). --------------------------------------------------------------------------- Identical fee increases to those proposed herein were originally filed on July 31, 2018, and designated effective August 1, 2018.\22\ That proposal, MIAX-2018-19, was published for comment in the Federal Register on August 13, 2018.\23\ The Commission received one comment letter on that proposal.\24\ On September 17, 2018, pursuant to Section 19(b)(3)(C) of the Act, the Commission: (1) Temporarily suspended the proposed rule change; and (2) instituted proceedings to determine whether to approve or disapprove the proposal.\25\ The instant filing proposes identical fees and raises similar concerns as to whether they are consistent with the Act.\26\ --------------------------------------------------------------------------- \22\ See supra note 4, and accompanying text. \23\ See supra note 5, and accompanying text. \24\ See supra note 6. \25\ See Securities Exchange Act Release No. 84175, 83 FR 47955 (September 21, 2018). \26\ See id. --------------------------------------------------------------------------- When exchanges file their proposed rule changes with the Commission, including fee filings like the Exchange's present proposal, they are required to provide a statement supporting the proposal's basis under the Act and the rules and regulations thereunder [[Page 50979]] applicable to the exchange.\27\ The instructions to Form 19b-4, on which exchanges file their proposed rule changes, specify that such statement ``should be sufficiently detailed and specific to support a finding that the proposed rule change is consistent with [those] requirements.'' \28\ --------------------------------------------------------------------------- \27\ See 17 CFR 240.19b-4 (Item 3 entitled ``Self-Regulatory Organization's Statement of the Purpose of, and Statutory Basis for, the Proposed Rule Change''). \28\ Id. --------------------------------------------------------------------------- Among other things, exchange proposed rule changes are subject to Section 6 of the Act, including Sections 6(b)(4), (5), and (8), which requires the rules of an exchange to (1) provide for the equitable allocation of reasonable fees among members, issuers, and other persons using the exchange's facilities; \29\ (2) perfect the mechanism of a free and open market and a national market system, protect investors and the public interest, and not be designed to permit unfair discrimination between customers, issuers, brokers, or dealers; \30\ and (3) not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.\31\ --------------------------------------------------------------------------- \29\ 15 U.S.C. 78f(b)(4). \30\ 15 U.S.C. 78f(b)(5). \31\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- In temporarily suspending the Exchange's fee change, the Commission intends to further consider whether increasing certain connectivity fees to the Exchange is consistent with the statutory requirements applicable to a national securities exchange under the Act. In particular, the Commission will consider whether the proposed rule change satisfies the standards under the Act and the rules thereunder requiring, among other things, that an exchange's rules provide for the equitable allocation of reasonable fees among members, issuers, and other persons using its facilities; not permit unfair discrimination between customers, issuers, brokers or dealers; and do not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.\32\ --------------------------------------------------------------------------- \32\ See 15 U.S.C. 78f(b)(4), (5), and (8), respectively. --------------------------------------------------------------------------- Therefore, the Commission finds that it is appropriate in the public interest, for the protection of investors, and otherwise in furtherance of the purposes of the Act, to temporarily suspend the proposed rule changes.\33\ --------------------------------------------------------------------------- \33\ For purposes of temporarily suspending the proposed rule change, the Commission has considered the proposed rule's impact on efficiency, competition, and capital formation. See 15 U.S.C. 78c(f). --------------------------------------------------------------------------- IV. Proceedings To Determine Whether To Approve or Disapprove the Proposed Rule Change The Commission is instituting proceedings pursuant to Sections 19(b)(3)(C) \34\ and 19(b)(2)(B) of the Act \35\ to determine whether the proposed rule change should be approved or disapproved. Institution of proceedings does not indicate that the Commission has reached any conclusions with respect to any of the issues involved. Rather, the Commission seeks and encourages interested persons to provide additional comment on the proposed rule change to inform the Commission's analysis of whether to disapprove the proposed rule change. --------------------------------------------------------------------------- \34\ 15 U.S.C. 78s(b)(3)(C). Once the Commission temporarily suspends a proposed rule change, Section 19(b)(3)(C) of the Act requires that the Commission institute proceedings under Section 19(b)(2)(B) to determine whether a proposed rule change should be approved or disapproved. \35\ 15 U.S.C. 78s(b)(2)(B). --------------------------------------------------------------------------- Pursuant to Section 19(b)(2)(B) of the Act,\36\ the Commission is providing notice of the grounds for possible disapproval under consideration: --------------------------------------------------------------------------- \36\ 15 U.S.C. 78s(b)(2)(B). ---------------------------------------------------------------------------Section 6(b)(4) of the Act, which requires that the rules of a national securities exchange ``provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities,'' \37\ --------------------------------------------------------------------------- \37\ 15 U.S.C. 78f(b)(4). --------------------------------------------------------------------------- Section 6(b)(5) of the Act, which requires, among other things, that the rules of a national securities exchange be ``designed to perfect the operation of a free and open market and a national market system'' and ``protect investors and the public interest,'' and not be ``designed to permit unfair discrimination between customers, issuers, brokers, or dealers,'' \38\ and --------------------------------------------------------------------------- \38\ 15 U.S.C. 78f(b)(5). --------------------------------------------------------------------------- Section 6(b)(8) of the Act, which requires that the rules of a national securities exchange ``not impose any burden on competition not necessary or appropriate in furtherance of the purposes of [the Act].'' \39\ --------------------------------------------------------------------------- \39\ 15 U.S.C. 78f(b)(8). --------------------------------------------------------------------------- As noted above, the proposal increases connectivity fees for physical connections to the Exchange. The Exchange states that this fee increase would partially offset costs associated with providing and maintaining this technology.\40\ In the instant filing the Exchange states that its increased costs relate to maintaining and expanding a team of highly-skilled network engineers, increasing fees charged by the Exchange's third-party data center operator, and costs associated with projects and initiatives designed to improve overall network performance and stability.\41\ --------------------------------------------------------------------------- \40\ See supra Section II.A.1. \41\ See id. --------------------------------------------------------------------------- Under the Commission's Rules of Practice, the ``burden to demonstrate that a proposed rule change is consistent with the [Act] and the rules and regulations issued thereunder . . . is on the [SRO] that proposed the rule change.'' \42\ The description of a proposed rule change, its purpose and operation, its effect, and a legal analysis of its consistency with applicable requirements must all be sufficiently detailed and specific to support an affirmative Commission finding,\43\ and any failure of an SRO to provide this information may result in the Commission not having a sufficient basis to make an affirmative finding that a proposed rule change is consistent with the Act and the applicable rules and regulations.\44\ --------------------------------------------------------------------------- \42\ Rule 700(b)(3), Commission Rules of Practice, 17 CFR 201.700(b)(3). \43\ See id. \44\ See id. --------------------------------------------------------------------------- The Commission is instituting proceedings to allow for additional consideration and comment on the issues raised herein, including as to whether the proposed fees are consistent with the Act, and specifically, with its requirements that exchange fees be reasonable and equitably allocated; be designed to perfect the mechanism of a free and open market and the national market system, protect investors and the public interest, and not be unfairly discriminatory; or not impose an unnecessary or inappropriate burden on competition.\45\ --------------------------------------------------------------------------- \45\ See 15 U.S.C. 78f(b)(4), (5), and (8). --------------------------------------------------------------------------- V. Commission's Solicitation of Comments The Commission requests written views, data, and arguments with respect to the concerns identified above as well as any other relevant concerns. Such comments should be submitted by October 31, 2018. Rebuttal comments should be submitted by November 14, 2018. Although there do not appear to be any issues relevant to approval or disapproval which would be facilitated by an oral presentation of views, data, and arguments, the Commission will consider, pursuant to Rule 19b-4, any request for an opportunity to make an oral presentation.\46\ --------------------------------------------------------------------------- \46\ 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act grants the Commission flexibility to determine what type of proceeding--either oral or notice and opportunity for written comments--is appropriate for consideration of a particular proposal by an SRO. See Securities Acts Amendments of 1975, Report of the Senate Committee on Banking, Housing and Urban Affairs to Accompany S. 249, S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). --------------------------------------------------------------------------- [[Page 50980]] The Commission asks that commenters address the sufficiency and merit of the Exchange's statements in support of the proposal, in addition to any other comments they may wish to submit about the proposed rule change. Interested persons are invited to submit written data, views, and arguments concerning the proposed rule change, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: Electronic Comments Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or Send an email to rule-comments@sec.gov. Please include File Number SR-MIAX-2018-25 on the subject line. Paper Comments Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. All submissions should refer to File Number SR-MIAX-2018-25. This file number should be included on the subject line if email is used. To help the Commission process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's internet website (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent amendments, all written statements with respect to the proposed rule change that are filed with the Commission, and all written communications relating to the proposed rule change between the Commission and any person, other than those that may be withheld from the public in accordance with the provisions of 5 U.S.C. 552, will be available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Washington, DC 20549 on official business days between the hours of 10:00 a.m. and 3:00 p.m. Copies of the filing also will be available for inspection and copying at the principal office of the Exchange. All comments received will be posted without change. Persons submitting comments are cautioned that we do not redact or edit personal identifying information from comment submissions. You should submit only information that you wish to make available publicly. All submissions should refer to File Number SR-MIAX-2018-25 and should be submitted on or before October 31, 2018. Rebuttal comments should be submitted by November 14, 2018. VI. Conclusion It is therefore ordered, pursuant to Section 19(b)(3)(C) of the Act,\47\ that File Number SR-MIAX-2018-25 be and hereby is, temporarily suspended. In addition, the Commission is instituting proceedings to determine whether the proposed rule change should be approved or disapproved. --------------------------------------------------------------------------- \47\ 15 U.S.C. 78s(b)(3)(C). \48\ 17 CFR 200.30-3(a)(57) and (58). For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.\48\ Eduardo A. Aleman, Assitant Secretary. [FR Doc. 2018-21921 Filed 10-9-18; 8:45 am] BILLING CODE 8011-01-P
![50976 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices
SECURITIES AND EXCHANGE forth in sections A, B, and C below, of addition, the Healthy Markets Letter
COMMISSION the most significant aspects of such argued that the Exchange did not offer
statements. any details to support its basis for
[Release No. 34–84357; File No. SR–MIAX–
asserting that the proposed fee increases
2018–25] A. Self-Regulatory Organization’s
are consistent with the Act. The
Statement of the Purpose of, and
Self-Regulatory Organizations; Miami Exchange is now re-filing the Proposed
Statutory Basis for, the Proposed Rule
International Securities Exchange LLC; Fee Increases, and is also providing
Change
Notice of Filing of a Proposed Rule additional detail regarding the basis for
Change To Amend the Fee Schedule 1. Purpose the Proposed Fee Increases. The
Regarding Connectivity Fees for The Exchange proposes to amend the proposed rule change is immediately
Members and Non-Members; Fee Schedule regarding connectivity to effective upon filing with the
Suspension of and Order Instituting the Exchange. Specifically, the Commission pursuant to Section
Proceedings To Determine Whether To Exchange proposes to amend Sections 19(b)(3)(A) of the Act.
Approve or Disapprove the Proposed 5(a) and (b) of the Fee Schedule to The Exchange currently offers various
Rule Change increase the network connectivity fees bandwidth alternatives for connectivity
for the 1 Gigabit (‘‘Gb’’) fiber to the Exchange, consisting of a 1Gb
October 3, 2018. connection, the 10Gb fiber connection, fiber connection, a 10Gb fiber
Pursuant to Section 19(b)(1) of the and the 10Gb ultra-low latency (‘‘ULL’’) connection, and a 10Gb ULL fiber
Securities Exchange Act of 1934 fiber connection, which are charged to connection. The 10Gb ULL offering uses
(‘‘Act’’),1 and Rule 19b–4 thereunder,2 both Members 3 and non-Members of the an ultra-low latency switch, which
notice is hereby given that on Exchange for connectivity to the provides faster processing of messages
September 18, 2018, Miami Exchange’s primary/secondary facility. sent to it in comparison to the switch
International Securities Exchange LLC The Exchange also proposes to increase used for the other types of connectivity.
(‘‘MIAX Options’’ or ‘‘Exchange’’) filed the network connectivity fees for the The Exchange currently assesses the
with the Securities and Exchange 1Gb and 10Gb fiber connections for following monthly network connectivity
Commission (‘‘Commission’’) a connectivity to the Exchange’s disaster fees to both Members and non-Members
proposed rule change as described in recovery facility. These proposed fee for connectivity to the Exchange’s
Items I and II below, which Items have increases are collectively referred to primary/secondary facility: (a) $1,100
been prepared by the Exchange. The herein as the ‘‘Proposed Fee Increases.’’ for the 1Gb connection; (b) $5,500 for
Commission is publishing this notice to The Exchange initially filed the the 10Gb connection; and (c) $8,500 for
solicit comments on the proposed rule Proposed Fee Increases on July 31, 2018, the 10Gb ULL connection. The
change from interested persons and is, designating the Proposed Fee Increases Exchange also assesses to both Members
pursuant to Section 19(b)(3)(C) of the effective August 1, 2018.4 The proposed and non-Members a monthly per
Act, hereby: (i) Temporarily suspending rule change was published for comment connection network connectivity fee of
the proposed rule change; and (ii) in the Federal Register on August 13, $500 for each 1Gb connection to the
instituting proceedings to determine 2018.5 The Commission received one disaster recovery facility and a monthly
whether to approve or disapprove the comment letter on the proposal.6 The per connection network connectivity fee
proposed rule change. Proposed Fee Increases remained in of $2,500 for each 10Gb connection to
effect until they were temporarily the disaster recovery facility.
I. Self-Regulatory Organization’s The Exchange’s MIAX Express
Statement of the Terms of Substance of suspended pursuant to a suspension
order (the ‘‘Suspension Order’’) issued Network Interconnect (‘‘MENI’’) can be
the Proposed Rule Change configured to provide Members and
by the Commission.7 The Suspension
The Exchange is filing a proposal to Order also instituted proceedings to non-Members of the Exchange network
amend the MIAX Options Fee Schedule determine whether to approve or connectivity to the trading platforms,
(the ‘‘Fee Schedule’’) to modify certain disapprove the proposed rule change.8 market data systems, test systems, and
of the Exchange’s system connectivity The Healthy Markets Letter argued disaster recovery facilities of both the
fees. that the Exchange did not provide Exchange and its affiliate, MIAX
The text of the proposed rule change sufficient information in its filing to PEARL, LLC (‘‘MIAX PEARL’’), via a
is available on the Exchange’s website at support a finding that the proposal is single, shared connection. Members and
http://www.miaxoptions.com/rule- consistent with the Act. Specifically, the non-Members utilizing the MENI to
filings, at MIAX’s principal office, and Healthy Markets Letter objected to the connect to the trading platforms, market
at the Commission’s Public Reference Exchange’s reliance on the fees of other data systems, test systems and disaster
Room. exchanges to demonstrate that its fee recovery facilities of the Exchange and
increases are consistent with the Act. In MIAX PEARL via a single, shared
II. Self-Regulatory Organization’s connection are assessed only one
Description of the Proposed Rule monthly network connectivity fee per
3 The term ‘‘Member’’ means an individual or
Change connection, regardless of the trading
organization approved to exercise the trading rights
In its filing with the Commission, the associated with a Trading Permit. Members are platforms, market data systems, test
Exchange included statements deemed ‘‘members’’ under the Exchange Act. See systems, and disaster recovery facilities
Exchange Rule 100.
concerning the purpose of and basis for 4 See Securities Exchange Act Release No. 83786
accessed via such connection.
the proposed rule change and discussed (August 7, 2018), 83 FR 40106 (August 13, 2018)
The Exchange proposes to increase
any comments it received on the (SR–MIAX–2018–19). the monthly network connectivity fees
amozie on DSK3GDR082PROD with NOTICES1
proposed rule change. The text of these 5 Id. for such connections for both Members
statements may be examined at the 6 See Letter from Tyler Gellasch, Executive and non-Members. The network
Director, The Healthy Markets Association, to Brent connectivity fees for connectivity to the
places specified in Item IV below. The J. Fields, Secretary, Commission, dated September
Exchange has prepared summaries, set 4, 2018 (‘‘Healthy Markets Letter’’).
Exchange’s primary/secondary facility
7 See Securities Exchange Act Release No. 34– will be increased as follows: (a) From
1 15 U.S.C. 78s(b)(1). 84175 (September 17, 2018). $1,100 to $1,400 for the 1Gb connection;
2 17 CFR 240.19b–4. 8 Id. (b) from $5,500 to $6,100 for the 10Gb
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![Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices 50979
applicable to the exchange.27 The IV. Proceedings To Determine Whether operator, and costs associated with
instructions to Form 19b–4, on which To Approve or Disapprove the projects and initiatives designed to
exchanges file their proposed rule Proposed Rule Change improve overall network performance
changes, specify that such statement The Commission is instituting and stability.41
‘‘should be sufficiently detailed and proceedings pursuant to Sections Under the Commission’s Rules of
specific to support a finding that the 19(b)(3)(C) 34 and 19(b)(2)(B) of the Practice, the ‘‘burden to demonstrate
proposed rule change is consistent with Act 35 to determine whether the that a proposed rule change is
[those] requirements.’’ 28 proposed rule change should be consistent with the [Act] and the rules
Among other things, exchange approved or disapproved. Institution of and regulations issued thereunder . . .
proposed rule changes are subject to proceedings does not indicate that the is on the [SRO] that proposed the rule
Commission has reached any change.’’ 42 The description of a
Section 6 of the Act, including Sections
conclusions with respect to any of the proposed rule change, its purpose and
6(b)(4), (5), and (8), which requires the
issues involved. Rather, the Commission operation, its effect, and a legal analysis
rules of an exchange to (1) provide for
seeks and encourages interested persons of its consistency with applicable
the equitable allocation of reasonable
to provide additional comment on the requirements must all be sufficiently
fees among members, issuers, and other
proposed rule change to inform the detailed and specific to support an
persons using the exchange’s
Commission’s analysis of whether to affirmative Commission finding,43 and
facilities; 29 (2) perfect the mechanism of
disapprove the proposed rule change. any failure of an SRO to provide this
a free and open market and a national
Pursuant to Section 19(b)(2)(B) of the information may result in the
market system, protect investors and the
Act,36 the Commission is providing Commission not having a sufficient
public interest, and not be designed to
notice of the grounds for possible basis to make an affirmative finding that
permit unfair discrimination between
disapproval under consideration: a proposed rule change is consistent
customers, issuers, brokers, or
dealers; 30 and (3) not impose any • Section 6(b)(4) of the Act, which with the Act and the applicable rules
requires that the rules of a national and regulations.44
burden on competition not necessary or The Commission is instituting
securities exchange ‘‘provide for the
appropriate in furtherance of the proceedings to allow for additional
equitable allocation of reasonable dues,
purposes of the Act.31 consideration and comment on the
fees, and other charges among its
In temporarily suspending the members and issuers and other persons issues raised herein, including as to
Exchange’s fee change, the Commission using its facilities,’’ 37 whether the proposed fees are
intends to further consider whether • Section 6(b)(5) of the Act, which consistent with the Act, and
increasing certain connectivity fees to requires, among other things, that the specifically, with its requirements that
the Exchange is consistent with the rules of a national securities exchange exchange fees be reasonable and
statutory requirements applicable to a be ‘‘designed to perfect the operation of equitably allocated; be designed to
national securities exchange under the a free and open market and a national perfect the mechanism of a free and
Act. In particular, the Commission will market system’’ and ‘‘protect investors open market and the national market
consider whether the proposed rule and the public interest,’’ and not be system, protect investors and the public
change satisfies the standards under the ‘‘designed to permit unfair interest, and not be unfairly
Act and the rules thereunder requiring, discrimination between customers, discriminatory; or not impose an
among other things, that an exchange’s issuers, brokers, or dealers,’’ 38 and unnecessary or inappropriate burden on
rules provide for the equitable • Section 6(b)(8) of the Act, which competition.45
allocation of reasonable fees among requires that the rules of a national
V. Commission’s Solicitation of
members, issuers, and other persons securities exchange ‘‘not impose any
Comments
using its facilities; not permit unfair burden on competition not necessary or
discrimination between customers, appropriate in furtherance of the The Commission requests written
issuers, brokers or dealers; and do not purposes of [the Act].’’ 39 views, data, and arguments with respect
impose any burden on competition not As noted above, the proposal to the concerns identified above as well
necessary or appropriate in furtherance increases connectivity fees for physical as any other relevant concerns. Such
of the purposes of the Act.32 connections to the Exchange. The comments should be submitted by
Exchange states that this fee increase October 31, 2018. Rebuttal comments
Therefore, the Commission finds that
would partially offset costs associated should be submitted by November 14,
it is appropriate in the public interest,
with providing and maintaining this 2018. Although there do not appear to
for the protection of investors, and
technology.40 In the instant filing the be any issues relevant to approval or
otherwise in furtherance of the purposes
Exchange states that its increased costs disapproval which would be facilitated
of the Act, to temporarily suspend the
relate to maintaining and expanding a by an oral presentation of views, data,
proposed rule changes.33
team of highly-skilled network and arguments, the Commission will
27 See 17 CFR 240.19b–4 (Item 3 entitled ‘‘Self-
engineers, increasing fees charged by consider, pursuant to Rule 19b–4, any
Regulatory Organization’s Statement of the Purpose the Exchange’s third-party data center request for an opportunity to make an
of, and Statutory Basis for, the Proposed Rule oral presentation.46
Change’’). 34 15 U.S.C. 78s(b)(3)(C). Once the Commission
28 Id. temporarily suspends a proposed rule change, 41 See id.
29 15 U.S.C. 78f(b)(4). Section 19(b)(3)(C) of the Act requires that the 42 Rule 700(b)(3), Commission Rules of Practice,
Commission institute proceedings under Section 17 CFR 201.700(b)(3).
amozie on DSK3GDR082PROD with NOTICES1
30 15 U.S.C. 78f(b)(5).
31 15 U.S.C. 78f(b)(8). 19(b)(2)(B) to determine whether a proposed rule 43 See id.
32 See 15 U.S.C. 78f(b)(4), (5), and (8),
change should be approved or disapproved. 44 See id.
35 15 U.S.C. 78s(b)(2)(B).
respectively. 36 15 U.S.C. 78s(b)(2)(B).
45 See 15 U.S.C. 78f(b)(4), (5), and (8).
33 For purposes of temporarily suspending the 46 15 U.S.C. 78s(b)(2). Section 19(b)(2) of the Act
37 15 U.S.C. 78f(b)(4).
proposed rule change, the Commission has grants the Commission flexibility to determine what
38 15 U.S.C. 78f(b)(5).
considered the proposed rule’s impact on type of proceeding—either oral or notice and
39 15 U.S.C. 78f(b)(8).
efficiency, competition, and capital formation. See opportunity for written comments—is appropriate
15 U.S.C. 78c(f). 40 See supra Section II.A.1. Continued
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![50980 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Notices
The Commission asks that submissions should refer to File the proposed rule change. On August
commenters address the sufficiency and Number SR–MIAX–2018–25 and should 16, 2018, the Commission extended the
merit of the Exchange’s statements in be submitted on or before October 31, time period within which to approve
support of the proposal, in addition to 2018. Rebuttal comments should be the proposed rule change, disapprove
any other comments they may wish to submitted by November 14, 2018. the proposed rule change, or institute
submit about the proposed rule change. proceedings to determine whether to
VI. Conclusion
Interested persons are invited to submit approve or disapprove the proposed
written data, views, and arguments It is therefore ordered, pursuant to rule change.5 On August 23, 2018, the
concerning the proposed rule change, Section 19(b)(3)(C) of the Act,47 that File Exchange submitted Amendment No. 2
including whether the proposed rule Number SR–MIAX–2018–25 be and to the proposed rule change.6 The
change is consistent with the Act. hereby is, temporarily suspended. In Commission received no comment
Comments may be submitted by any of addition, the Commission is instituting letters on the proposal. This order
the following methods: proceedings to determine whether the approves the proposed rule change.
proposed rule change should be
Electronic Comments approved or disapproved. II. Description of the Proposed Rule
• Use the Commission’s internet Change
For the Commission, by the Division of
comment form (http://www.sec.gov/ Trading and Markets, pursuant to delegated As described in more detail in the
rules/sro.shtml); or authority.48 Notice,7 the Exchange proposes to: (1)
• Send an email to rule-comments@ Eduardo A. Aleman, Provide for the listing of certain ETPs,
sec.gov. Please include File Number SR– Assitant Secretary. provided that an ETP meets the
MIAX–2018–25 on the subject line. [FR Doc. 2018–21921 Filed 10–9–18; 8:45 am]
applicable requirements of NYSE Rules
Paper Comments BILLING CODE 8011–01–P
5P and 8P and does not have any
component NMS Stock that is listed on
• Send paper comments in triplicate the Exchange or is based on, or
to Brent J. Fields, Secretary, Securities represents an interest in, an underlying
SECURITIES AND EXCHANGE
and Exchange Commission, 100 F Street index or reference asset that includes an
COMMISSION
NE, Washington, DC 20549–1090. NMS Stock listed on the Exchange; 8 (2)
All submissions should refer to File [Release No. 34–84351; File No. SR–NYSE– delete a sentence in NYSE Rule 5.1(a)(1)
Number SR–MIAX–2018–25. This file 2018–30] that is no longer relevant given the
number should be included on the Exchange’s addition of Section 303A to
subject line if email is used. To help the Self-Regulatory Organizations; New
York Stock Exchange LLC; Order the Listed Company Manual,9 which
Commission process and review your requires all NYSE-listed companies,
comments more efficiently, please use Approving a Proposed Rule Change To
Provide for the Listing of Exchange including any ETPs listed on the
only one method. The Commission will Exchange, to comply with Section 303A
post all comments on the Commission’s Traded Products With No Component
NMS Stock Listed on the Exchange, of the Listed Company Manual; (3)
internet website (http://www.sec.gov/ delete certain listing rules that would be
rules/sro.shtml). Copies of the Delete Obsolete Listing Rules for
Exchange Traded Products and Amend superseded by the ETP listing and
submission, all subsequent trading requirements proposed in NYSE
amendments, all written statements Rules Regarding Unlisted Trading
Privileges Rules 5P and 8P; (4) delete all references
with respect to the proposed rule in NYSE Rules 5P and 8P that imply
change that are filed with the October 3, 2018.
Commission, and all written 5 See Securities Exchange Act Release No. 83860,
communications relating to the I. Introduction 83 FR 42534 (August 22, 2018).
6 Amendment No. 2 replaced and superseded the
proposed rule change between the On June 15, 2018, the New York Stock
original filing, as modified by partial Amendment
Commission and any person, other than Exchange LLC (‘‘Exchange’’ or ‘‘NYSE’’) No. 1, in its entirety. In Amendment No. 2, the
those that may be withheld from the filed with the Securities and Exchange Exchange: (i) Provided background information
public in accordance with the Commission (‘‘Commission’’), pursuant regarding its Pillar platform and clarified that it
provisions of 5 U.S.C. 552, will be to Section 19(b)(1) of the Securities would not be listing ETPs on its Pillar platform at
available for website viewing and Exchange Act of 1934 (‘‘Act’’) 1 and Rule this time but that it would announce via trader
update when it plans to do so; (ii) designated as
printing in the Commission’s Public 19b–4 thereunder,2 a proposed rule ‘‘Reserve’’ certain sections of the Listed Company
Reference Room, 100 F Street NE, change to provide for the listing of Manual which rules are being deleted by this
Washington, DC 20549 on official exchange traded products (‘‘ETPs’’) that proposal; (iii) represented that the Commission
business days between the hours of do not have any component NMS approved Exchange listing rules that are
substantially identical to those on NYSE Arca, Inc.
10:00 a.m. and 3:00 p.m. Copies of the Stock 3 listed on the Exchange, delete (‘‘NYSE Arca’’) for certain ETPs; and (iv) made
filing also will be available for obsolete listing rules for ETPs, and technical changes to the rule text and proposal.
inspection and copying at the principal amend rules regarding unlisted trading Because Amendment No. 2 does not materially alter
office of the Exchange. All comments privileges (‘‘UTP’’). The proposed rule the substance of the proposed rule change or raise
unique or novel regulatory issues under the Act, it
received will be posted without change. change was published for comment in is not subject to notice and comment. Amendment
Persons submitting comments are the Federal Register on July 6, 2018.4 No. 2 is available at: https://www.sec.gov/
cautioned that we do not redact or edit On July 24, 2018, the Exchange comments/sr-nyse-2018-30/nyse201830-4274809-
personal identifying information from submitted partial Amendment No. 1 to 173136.pdf.
7 See Notice, supra note 4.
comment submissions. You should
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8 The Exchange represents that its proposed rules
submit only information that you wish 47 15 U.S.C. 78s(b)(3)(C).
for the qualification, listing, and trading of these
to make available publicly. All 48 17 CFR 200.30–3(a)(57) and (58). products are substantially identical (other than
1 15 U.S.C. 78s(b)(1).
certain non-substantive and technical amendments)
2 17 CFR 240.19b–4.
for consideration of a particular proposal by an as the rules of NYSE Arca and the Exchange’s other
3 NMS Stock is defined in Rule 600 of Regulation affiliates, including NYSE American LLC (‘‘NYSE
SRO. See Securities Acts Amendments of 1975,
Report of the Senate Committee on Banking, NMS, 17 CFR 242.600(b)(47). American’’).
Housing and Urban Affairs to Accompany S. 249, 4 See Securities Exchange Act Release No. 83560 9 Section 303A implements the requirements of
S. Rep. No. 75, 94th Cong., 1st Sess. 30 (1975). (June 29, 2018), 83 FR 31585 (‘‘Notice’’). Rules 10A–3 and 10C–1 under the Act.
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Document Created: 2018-10-10 17:39:05
Document Modified: 2018-10-10 17:39:05
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| FR Citation | 83 FR 50976 |
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